In re the Personal Restraint of Rydholm

Michael Rydholm seeks relief from personal restraint in the form of an above-range exceptional sentence imposed for his 1996 Spokane County conviction upon plea of guilty to second degree felony murder involving the predicate felony of second degree assault. Mr. Rydholm claims his conviction must be vacated in light of our Supreme Court's holding in In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002), that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976).¹ In In re Personal Restraint of Hinton, Wn.2d, 100 P.3d 801 (2004), the court held that the decision in Andress applied retroactively to personal restraint petitioners convicted of the crime of second degree felony murder predicated on assault. Hinton,100 P.3d at 804. Therefore, the petitioners' judgments were facially invalid and not subject to the one year time limit of RCW 10.73.090(1) for collateral attack. The court also held that the 2003 legislative amendment that included assault as a predicate crime for second degree felony murder was not retroactive because retroactive application would violate the ex post facto clauses of the state and federal constitutions. Hinton, 100 P.3d at 805. The court thus vacated the petitioners' convictions.

The holdings in Andress and Hinton apply to Mr. Rydholm's case and entitle him to relief.

Accordingly, we grant Mr. Rydholm's personal restraint petition to the extent that his second degree felony murder conviction and sentence is vacated and his case remanded to the Spokane County Superior Court for further lawful proceedings consistent with Andress and Hinton. Hinton, 100 P.3d at 805 (citing Andress,147 Wn.2d at 617 n. 5).²

The court has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

Kato, C.J.

¹ Following the Andress decision, the legislature amended the second degree felony murder statute, effective February 12, 2003, to expressly declare that assault is included among the predicate crimes under the second degree felony murder statute. Laws of 2003, ch. 3, sec. 2.

² This result obviates our previously issued stay pending the decision and certificate of finality in In re Personal Restraint of Swenson, Supreme Court No. 75766-6 (whether Blakely v. Washington, U.S., 124 S.Ct. 2531, 159 L. Ed. 2d. 403 (2004) applies on collateral review to cases final before Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000)).